The U.S. Supreme Court”s decision Tuesday not to hear Smith v. University of Washington Law School, the case challenging the school”s race-conscious admissions policies, may have little immediate impact on the two similar cases against the University of Michigan scheduled to be heard in the 6th Circuit Court of Appeals in Cincinnati this fall.
“Other than making it more likely that the Supreme Court will hear the University of Michigan cases, I don”t think it will have too much of an effect,” said Curt Levey, legal director for the Center for Individual Rights, which represents the plaintiffs in all three cases.
“The decision to deny certiorari in the Washington case is not a surprise,” said University of Michigan Law School Dean Jeffrey Lehman. “If the Supreme Court is to revisit the issue of affirmative action in higher education, that case would be a poor vehicle through which to do so.”
The court passed over the case, an action which lets stand the 9th Circuit Court of Appeal”s decision upholding the view of diversity as a compelling governmental interest, Lehman said.
“Naturally, we hope that the Sixth Circuit will interpret the Constitution in the same way,” he said.
University of California at Los Angeles Prof. Robert Post cautioned the action did not necessarily indicate the Supreme Court would rule in favor of race-conscious admissions policies. “Denial of certiorari is meant to mean nothing,” he said.
University of Michigan Law School graduate Tony Miles, who now practices in Seattle, noted the major difference between the cases in Michigan and Washington is that voters in Washington passed an initiative similar to Proposition 209 in California, ending affirmative action in the state. Therefore, a ruling by the Supreme Court would not have had any impact on current policies.
Michigan does not have a state-wide ban on affirmative action policies, and a ruling either way by the Supreme Court would be significant.
Post speculated one reason the court decided not to hear the case could be that the nine justices appear to be split on the issue.
Justice Sandra Day O”Connor is considered to be the deciding vote. “Where O”Connor goes on this vote, so goes the court,” Post said, adding the other justices may be wary of taking a case when they don”t know O”Connor”s position.